Amicus Curiae Brief — Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers

Supreme Court, U.S.

FILED

JUL 2 / onnn

SOLID WASTE AGENCY OF NORTHERN COOK

COUNTY,

Petitioner,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS, et al,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

BRIEF IN AMICUS CURIAE IN SUPPORT OF

PETITIONER

MICHAEL P. FARRIS*

ScoTT W. SOMERVILLE

CENTER FOR THE ORIGINAL

INTENT OF THE

CONSTITUTION

Patrick Henry College

P.O. Box 1773

Purcellville, VA 20134

(549) 388-1776

PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. @ 1-800-347-8208

2490

a TO ee ee ee en aa

QUESTION PRESENTED

The Army Corps of Engineers refused to grant the peti-

tioner, a consortium of 23 municipalities, permission to turn

an abandoned strip mine into a landfill. The Corps claimed

jurisdiction over the site solely because migratory birds had

been observed on the property.

Question presented: May the Corps, consistent with the

Clean Water Act and the Commerce Clause of the U.S. Con-

stitution, assert jurisdiction over isolated intrastate waters

solely because those waters do or potentially could serve as

habitat of migratory birds?

TABLE OF CONTENTS

Question Presented...........c:csssersereseesenersennenneennenenenenennerenens ii

Table Of Comtentt .........c..cccsssesscsssecosossesssorsesseosecsecsenssssesssses iii

Table of Authorities .................ccsssssssssesseseensenseeseneesnnennesnens iv

Interest Of the AMICUS ...........c.sseseeesceseeeserseneseneenenenenenernennnnes l

Summary of Argument.............:ssscessserseeeseenennensnenennnenenennenens 3

Argument: Both the Textual and the Structural

Restraints of the Constitution Prohibit the

Executive Branch from Expanding the Statutory

Term "Navigable Waters" to Include Water-

Filled Ditches on an Abandoned Strip Mine.................... 7

A. Gibbons v. Ogden Is a Sound Foundation for

a Twenty-First Century Understanding of the

Cement CRABB ..cccccccescccccccccccescsccecccesceseccsscssoscosees 7

B. Chief Justice John Marshall Believed in

Separate, Sovereign Governments with

Separate, Plenary Powe’ .............::ss:ssssssesnenserenenenees 10

C. Chief Justice Marshall Rejected Both a "Strict

Construction" and an "Enlarged Construction"

of the Constitutional Text ............cccccsesereeeeeeeeeeneees 12

D. The Elected Legislature Should Express the

Will of the People, and the Executive Branch

Should Carry It Out. ..........:ccccssssessesenesnenenneeenenennenees 16

em oa cccccesccceccccsccccoecsssessoscocessnsnnsosssscsssonoosscosososscssees 18

iv

TABLE OF AUTHORITIES

Cases

Boy Scouts of America v. Dale,

ey ere I CD cc cetiecienscceerntecseeneenespanssianencn 10

California Democratic Party v. Jones,

FD lk Wc SEO GD wrccccccccccecccsesccseccesstsssunsmssssssnies 10

FDA v. Brown & Williamson,

68 U.S.L.W. 4194 (2000) oo... .ccccccccccecescececeecees 5, 7, 18, 19

Gibbons v. Ogden,

22 U.S. (9 Wheat) 1 (1824)........ccccccccccececcecescesseceoeee passim

Hammer v. Dagenhart,

li an ERC Ree ePIC Si: 15

Jones v. United States,

68 U.S.L.W. 4422 (2000) o..ceccccccccccccccesceceseeseeees 1,3, 4, 18

Kidd v. Pearson,

Ee ae mT Ben Se 15

Lopez v. United States,

8 Ee 4,15

New York v. United States,

A EE lt hc a 10

Printz v. United States,

ee a 10

Troxel v. Granville,

a ie I ccc treransemsenereeerimeresassnnensinent 10

<

United States v. Morrison,

68 U.S.L.W. 4351 (2000) .........cccccccecceeereeneneeenes 1,4, 7,15

Wickard v. Filburn,

00 6 7 yy 15

Statutes

33 U.G.C. § 1344 .22.....c.cascscrcsesccccescsesnressessenscserensssssenssosensesees 3

Constitutional Provisions

NO ————————————— 4

CRD Cnet, Mae, TEV ccccccccscscsnssnscccncssntnnsnnentacsncasensnennset 17

U.S. Comsat. Ast. 1, § 1 ...2..:.0c-cssccscssssccsccsccsenssesssessssssssosessoess 17

U.S. Const. Art. I, section 8, clause 3 ...............-00-s00 passim

ite” 2.5 0 ) 3,17

OOO Crt a ccccccccccecccesnsensncnssnsbncnennsaneenananenes 2, 13

Founding Documents

1 Madison, James, Journal of the Federal Convention

362 (2d ed. 1893)...........csccscsssssseserenensnserenserssssssscssssssenees 14

Declaration of Independence................-esseseeeeeeeneeenneenennees l

INTEREST OF THE AMICUS’

The Center for the Original Intent of the Constitution was

formed by the Home School Legal Defense Association in

1998, and now operates under the auspices of Patrick Henry

College. The Center holds that the interpretation of the Con-

stitution according to the original intent of the Founders is

the only safe basis for the preservation of limited govern-

ment and those inalienable rights that were conferred by the

Creator and which are acknowledged in the Declaration of

and advocate constitutional interpretation according to the

principle of original intent.

In our briefs to date, we have argued that principles of

dual sovereignty, implicit in the structure of the Constitution,

limit the powers of Congress over States. In our briefs in

United States v. Morrison, 68 U.S.L.W. 4351 (2000) and

Jones v. United States, 68 U.S.L.W. 4422 (2000), we ex-

plained how the Founders’ notion of “separate incompe-

tence” limits the power of Congress over private intrastate

activity. In this brief, we bring together the complementary

strands of “dual sovereignty” and “separate incompetence”

in an effort to return to the strong yet limited federal gov-

ernment our Founders established.

' Pursuant to Rule 37.6, this brief was authored, prepared, and

paid for in its entirety by the Center for the Original Intent of the Con-

stitution at Patrick Henry College and the Home School Legal Defense

Association. No counsel for a party authored any part of this brief, nor

did any person or entity other than amicus curiae or its counsel make a

monetary contribution to the preparation or submission of this brief.

of the parties to the filing of this brief. Such written consents, in the form

of letters from counsel of record for the parties, have been submitted for

filing to the Clerk of Court. See Sup. Ct. Rule No. 37.3(a).

The vertical separation of powers between the State and

federal governments is one of the structural guarantees of

liberty within our Constitution. Another equally important

safeguard of our freedom is the horizontal separation of

powers between the coordinate branches of the federal gov-

ernment. That horizontal separation is threatened whenever

one branch of government arrogates to itself the powers that

our Founders placed exclusively in other hands.

Our Founders established a federal government with

enumerated, and separated powers. The limits on federal

power were originally intended to protect the autonomy of

the States and the liberties of the people. The Founders

viewed vigorous State governments and limited federal gov-

ernment as essential to personal liberty. So do we.

Our interest is to preserve the blessings of liberty for our-

selves and our posterity. U.S. Const. Preamble. We seek to

do this by holding the federal government to the terms of our

original social contract: the Constitution. Faithful adherence

to the original intent of the Founders is essential; not because

they are ancient and deserve veneration, but because they

were the elected representatives of the people. If unelected

elites can change the meaning of the Constitution, then we

cease to be self-governing citizens and become, instead, the

subjects of someone else's governance.

© What is "commerce ... the several " as i

e ... among States," as it

appears in the United States Constitution in Article |

section 8, clause 3?

° What is "the executive power of the United States," as it

appears in the first sentence of Article II, section 1?

° What are "the navigable waters” of the United States, as

that term in the

aaa appears in Clean Water Act, 33 U.S.C. §

If any of these terms are used in their ordinary

sense, the

Judgment of the Seventh Circuit must be reversed. If all of

these terms are twisted out of recognition to uphold federal

periment with, lini gPeny: then perhaps our national ex-

imited government and

should be declared a failure. 1) ae

There is some reason to be optimistic. Recent cases sug-

gest that there is still some life in our Founders’ original con.

cept of limited government. In Jones v. United States, 68

U.S.L.W. 4422 (2000), this Court unanimously rejected an

Executive Branch attempt to expand Commerce Clause leg-

that was “used in or affecting interstate commerce," because

it was financed with an out-of-state mortgage, insured by an

4

- insurer, and heated by out-of-state natural gas.

Tho defendant, Dewey Jones, was sentenced to 30 years Un-

der the federal arson statute instead of the 10 year maximum

penalty for the same offense under Indiana law. The gov-

ernment admitted that there must be some kind of nexus

between interstate commerce and the predicate act, but ar-

gued that the government neither had to prove that there was

an “actual effect" on commerce nor a "substantial effect" in

each case. Brief for United States at 13, Jones, supra (No.

99-5739) [emphasis in original]. Every member of this Court

recognized and rejected this threat to individual rights.

Department of Justice prosecuted Dewey Jones un-

outed arson statute because, for almost half a cen-

tury, there have been no meaningful limits to Congress's

power under the Commerce Clause. That began to change

when this Court declared the "substantial effects test in Lo-

pez v. United States, 514 U.S. 549 in 1995. And after this

Court's decision in United States v. Morrison, supra, one

could no longer safely assume that Congress can regulate

anything under the guise of commerce. For the first time

since 1942, this Court has begun to insist that the power to

regulate interstate commerce is part of our overall system of

limited and enumerated powers. This is a time of transition.

At a time of transition like this, we suggest a long, care-

ful look at the very first important Commerce Clause case:

Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824). It was an

historic case in every sense of the word. The parties were

fighting over a steamboat monopoly that was originally

granted to Robert Fulton, the inventor of the steamboat.

Daniel Webster argued the winning side. Chief Justice John

Marshall wrote the majority opinion. Gibbons introduced a

broad reading of the Commerce Clause that won the respect

of the founding generation.

5

But Gibbons did not introduce an unlimited reading of

the Commerce Clause. Chief Justice Marshall identified a

textual limit on Congress's power and a political limit. Mar-

shall took the text of the Constitution as he found it, rejecting

both an "enlarged construction” and a "strict construction" of

the words the Founders chose. He pointed to the political

restraints built into the Constitution. The political account-

ability of the elected legislature is the only real restraint on

some of the enumerated, yet plenary powers of Congress.

This is a structural guarantee of liberty, and a vital part of

Our constitutional separation of powers.

Marshall's two restraints--the textual and the political--

provide all the guidance this Court needs to resolve this case.

Congress has enacted legislation intended to protect the

navigable waters of the United States. A coordinate branch

of government has construed "the navigable waters" so

broadly as to include water-filled ditches on an abandoned

strip mine in the Chicago suburbs, on the theory that mi-

grating birds affect interstate commerce enough to create

congressional power over these puddles. No Congressman

has ever had to defend a vote for or against this startlingly

broad reading of the Commerce Clause, however. It is the

EPA that proclaimed the "migratory bird rule” that produced

this result, and the Army Corps of Engineers that denies the

permits on this basis.

We believe that John Marshall's emphasis on plain lan-

guage and political accountability mandate a reversal of the

decision below. The question here, as in last term's case of

FDA v. Brown & Williamson, 68 U.S.L.W. 4194 (2000) is

not what Congress might do to regulate commerce, but what

the Executive Branch can do with a statute Congress has en-

acted for another purpose altogether. The question in Brown

& Williamson was whether the FDA could unilaterally de-

6

fine tobacco as a "drug." The question in this case is

whether the EPA can redefine water-filled ditches into

"navigable waters." If we still believe in plain language and

political accountability, the answer in this case has to be no.

We therefore urge this Court to overturn the decision of the

Seventh Circuit.

ARGUMENT:

BOTH THE TEXTUAL AND THE STRUCTURAL RESTRAINTS

OF THE CONSTITUTION PROHIBIT THE EXECUTIVE BRANCH

FROM EXPANDING THE STATUTORY TERM "NAVIGABLE

WATERS" TO INCLUDE WATER-FILLED DITCHES ON AN

ABANDONED STRIP MINE

A. GIBBONS V. OGDEN Is A SOUND

FOUNDATION FOR A TWENTY-FIRST

CENTURY UNDERSTANDING OF THE

COMMERCE CLAUSE

In the twentieth century, America endured a World War

and a Great Depression, a New Deal and another World War,

a struggle for civil rights at home and a Cold War against

communism. A century of struggle turned this nation into the

world's lone superpower, but it led us far from our Founders'

original vision of limited and enumerated federal powers.

The question for the twenty-first century will be whether the

federal government will continue its twentieth-century trend

until it absorbs and consumes every lesser center of power,

or whether America will rediscover the dual sovereignty our

Founders originally envisioned.

This Court's 1999 term suggests that our Founders’ vision

may yet prevail. For the first time in decades, the Court

placed real limits on Congress's power to expand the mean-

ing of the Constitution and on the Executive's power to ex-

pand the meaning of statutes. Morrison, supra; Brown &

Williamson, supra. There were those who were quick to

criticize these rulings as "judicial activism." The Court can

be active, however, without being activist. It is not activism

for this Court to exercise its constitutional powers when o

coordinate branches of government go far beyond

boundaries of theirs.

If nothing ever changed, there would be no need for an

active Court. But changing times require changing -7

protect unchanging values. For example, in the face 0

totalitarian regimes of the 20th Century, America eon

concentrate all its force into a single fist in defense o ~

erty? But to defend liberty today, now that the threat

passed, we must exchange that fist of war for the oper hand

of peace.

In changing times like these, we do well to consider other

iti i j i that the early

times of transition. This amicus believes

eect century is an ideal time to rediscover the wisdom

2 Justice Jackson touched on this concept in his dissent in Kore-

matsu v. United States, 323 U.S. 214 (1944). He wrote:

When an area is so beset that it must be put under

military control at ali, the paramount consideration Is

that its measures be successful, rather than legal. The

armed services must protect a society, not merely its

Constitution. The very essence of the military job is to

marshal physical force, to remove every obstacle to its

effectiveness, to give it every strategic advantage. De-

fense measures will not, and often should not, be held

within the limits that bind civil authority in peace. No

court can require such a commander in such circum-

Korematsu, 323 U.S. at 244 (Jackson, J., dissenting).

9

of the early nineteenth century, and, in particular, the wis-

dom of Chief Justice John Marshall in Gibbons v. Ogden.

The times are more similar than one might think. In

1824, the world had just regained its breath after the terrify-

ing years of the Napoleonic Wars, a struggle that rocked all

of Europe and sucked America into the War of 1812.

America was just beginning to see daylight after a long dark

economic night that began with the crippling debts of the

Revolutionary War. The next generation promised to be

good for the still-young nation.

In the year 2000, the world has just regained its breath

after a Cold War that affected the whole world. The threat of

“mutually assured destruction" is fading away like a bad

dream, and Americans wake up in the morning bent on the

pursuit of happiness instead of the global struggle to preserve

life and liberty. Our national debt is still in the trillions, but

the ink in Washington is black instead of red, these days.

For the first time since our nation was very young, we have

the freedom to rediscover the untapped potential of Amer-

ica's unique system of dual sovereignty.

For we have yet to unleash the full promise of our con-

stitutional system. Although this Court often speaks of the

States as "laboratories of dernocracy,” we have yet to achieve

the possibilities of that phrase. The Tenth Amendment

speaks to a system where self-governing individuals exercise

individual liberties; self-governing States exercise wide-

ranging sovereign powers; and a strong but limited federal

government increases the security and prosperity of all with-

out intruding upon the protected rights of any.

This Court has recently begun to move in that direction.

Some critics have been quick to label these as "States’ rights”

10

decisions, but that is a mistake. These recent decisions do

not just limit the federal government in order to benefit the

States. Instead, the Court has begun to revive the concept of

self-government at every level: limiting federal power to

promote self-governing States, and limiting State power to

protect self-governing voluntary associations. See, New York

v. United States, 505 U.S. 144 (1992) (federal government

cannot co-opt State legislatures); Printz v. United States, 521

U.S. 898 (1997) (Congress cannot co-opt local law enforce-

ment officials); Boy Scouts of America v. Dale, 68 U.S.L.W.

4625 (2000) (States cannot prohibit voluntary associations

from choosing their own leaders); California Democratic

Party v. Jones, 68 U.S.L.W. 4604 (2000) (States cannot

force political parties to let members of other parties choose

their candidates); Troxel v. Granville, 68 U.S.L.W. 4458

(2000) (States cannot force parents to allow visitation with

any third party). These cases all reverse the 20th Century

trend towards centralized power, replacing it with a new

paradigm of self-government.

B. CHIEF JUSTICE JOHN MARSHALL BELIEVED

IN SEPARATE, SOVEREIGN GOVERNMENTS

WITH SEPARATE, PLENARY POWERS

That "new" paradigm, however, is hardly new. Our

Founders believed in self-government. They assumed that

households, churches, voluntary associations, towns, cities,

counties, and States would all be able to govern themselves.

They recognized, however, that there were some things that

State and local governments could not handle on their own,

and so they established a self-governing Union of thirteen

States to do what the States were separately unable to ac-

complish. That federal Union was an experiment in gov-

ernment that has succeeded beyond their wildest expecta-

tions.

11

Chief Justice John Marshall had a bold, clear vision of

how the new Constitution should work. Central to that vision

was his concept of the relationship between the people, the

States, and the new federal government. Marshall insisted

cas the now Union was aot created by the States, and it did

not merely exercise a subset of powers del the

States. Instead, the new government was ones rand by

the people themselves. This meant that the sovereign power

was separated, not delegated.

This concept of separated sovereignty is crucial to under-

standing Marshall in Gibbons. The nee party in that a

had urged the Court to apply a "strict construction" to the

Constitution, arguing that the power to regulate commerce

was an express delegation of power from the States, and that

any express delegation of power should be strictly construed.

Gibbons, 22 U.S. (9 Wheat) at 43. Chief Justice Marshall

rejected the premise that the federal government was exer-

cising powers delegated by the States. He identified a

change that Justice Kennedy has since aptly called "splitting

the atom of sovereignty," U.S. Term Limits v. Thornton, 514

U.S. 779, 838 (1994) (Kennedy, J., concurring). Marshall

wrote:

When these allied sovereigns [the States]

converted their league into a government,

when they converted their Congress of Am-

bassadors, deputed to deliberate on their

common concerns, and to recommend meas-

ures of general utility, into a Legislature, em-

powered to enact laws on the most interesting

subjects, the whole character in which the

States appear, underwent a change, the extent

of which must be determined by a fair consid-

12

eration of the instrument by which that

change was effected.

Gibbons, 22 U.S. (9 Wheat) at 187.

Marshall did not view the federal government as the

child of the State governments, depending for its existence

on a meager allowance of power. But that did not mean he

viewed the States as mere "departments" of an all-consuming

federal government, either. In Marshall's view, the people

were ultimately sovereign, and the Constitution was the in-

strument by which a sovereign people divided power be-

tween State and federal governments, and between the vari-

ous branches of the new federal government.

Cc. CHIEF JUSTICE MARSHALL REJECTED BOTH

A "STRICT CONSTRUCTION" AND AN

"ENLARGED CONSTRUCTION" OF THE

CONSTITUTIONAL TEXT

Marshall believed that all power resided ultimately with

the people, but that power was dormant until delegated. Mar-

shall saw no reason for leaving power untapped:

The grant [to Congress] does not convey

power which might be beneficial to the gran-

tor [the people], if retained by himself, or

whch can inure solely to the benefit of the

grantee; but is an investment of power for the

general advantage, in the hands of agents se-

lected for that purpose; which power can

never be exercised by the people themselves,

but must be placed in the hands of agents, or

lie dormant.

Gibbons, 22 U.S. (9 Wheat) at 189.

13

Because of this view, Marshall roundly rejected argu-

ments for a "strict construction" of the Constitution. He did

not do this in a way that would trouble modern "strict con-

structionists," however. In fact, Marshall's rejection of a

“strict construction" is a powerful argument in favor of this

amicus’ understanding of what is now known as "strict con-

structionism." Marshall said:

What do gentlemen mean, by a strict con-

struction? If they contend only against that

enlarged construction, which would extend

words beyond their natural and obvious im-

port, we might question the application of the

term, but should not controvert the principle.

Gibbons, 22 U.S. (9 Wheat) at 188.

This amicus does contend against any "enlarged con-

struction, which would extend words beyond their natural

and obvious import." "Interstate commerce" does not natu-

rally and obviously include the flight of migratory birds.

"Navigable waters" do not naturally and obviously include

water-filled ditches on an abandoned strip mine. Chief Jus-

tice John Marshall might question whether this should prop-

erly be called "strict construction," but he would not contro-

vert the principle.

Rejecting such an “enlarged construction" does not de-

prive Congress of the power to do what America needs. Mar-

shall would not "cripple the government, [and] render it une-

qual to the object, for which it is declared to be instituted,

and to which the powers given, as fairly understood, render it

competent." Gibbons, 22 U.S. (9 Wheat) at 188. The ob-

jects of the Constitution are eloquently set forth in the Pre-

amble of that document, and include both the promotion of

14

the General Welfare and the preservation of the Blessings of

Liberty. Congress can and should pursue both of these ob-

jects.

Marshall's concept of legislative power is consistent with

the original draft resolution that the Framers adopted at the

very beginning of the Constitutional Convention. At an

early stage of the Convention, the delegates adopted a defi-

nition of the "the legislative power of the United States” that

included the power to legislate on every subject for which

the States were "severally incompetent."” 1 Madison, James,

Journal of the Federal Convention 362 (2d ed. 1893) [herein-

after, "Madison's Journal"). That broad definition was subse-

quently refined to the enumerated list of powers now found

in Article I, section 8. Marshall's robust interpretation of the

enumerated powers was completely consistent with the

original concept of "separate incompetence."

The Clean Water Act is a good example of legislation for

which the States would have been separately incompetent.

Water pollution is no respecter of State boundaries. Agri-

cultural pesticides that drain into the headwaters of the Mis-

sissippi flow past every State on that river from Minnesota to

Louisiana; sludge from the mines at the western end of Lake

Superior runs through all five of the Great Lakes before

reaching the Saint Lawrence Seaway; and a pig farm in the

Virginia tidewater can affect algae across the Chesapeake

Bay in Maryland. The States cannot reliably solve such

problems one by one. But, under a separate incompetence

standard, the United States can.

> This amicus has previously addressed the history and implica-

tions of the "separate incompetence” standard, with a particular emphasis

on Gibbons, in our brief in Jones, supra, (No. 99-5739), pp. 5-16.

15

The Court has begun to note the difference between

The fact that migrating wildlife is a matter of truly na-

tional concern does not mean that Congress can protect mi-

gratory birds by just calling them "commerce," however.

The Commerce Clause has had a long and twisted history.

For a while, "commerce" seemed to include very little. See

Kidd v. Pearson, 128 U.S. 1 (1888) ("manufacturing” is not

commerce"); Hammer v. Dagenhart, 247 U.S. 251 (1918)

(prohibiting interstate shipment of goods produced by child

labor is a regulation of production, not of commerce). Later,

it seemed to include almost anything. See Wickard v. Fil-

burn, 317 U.S. 111 (1942) (wheat grown on one's own land

and fed to one's own chickens can be regulated as "interstate

conumerce”). On the whole, however, Commerce Clause ju-

nsprudence has not progressed much beyond Marshall's

early formulation. Congress currently seems to exercise ple-

nary power over economic activity that affects more States

than one, subject only to the political checks of the ballot

X.

This Court's recent cases fit with Marshall's broad but not

unlimited theory of the Commerce Clause. A plenary power

over commerce does not give Congress power over things

that are not commerce, like rape, Morrison, supra, or the

mere presence of firearms near a school, Lopez, supra. Con-

gress might therefore rely upon something other than the

16

power to "regulate ... commerce among the several States"

to protect migratory birds.‘

D. THE ELECTED LEGISLATURE SHOULD

EXPRESS THE WILL OF THE PEOPLE, AND

THE EXECUTIVE BRANCH SHOULD CARRY IT

OUT.

Marshall believed in a limited but strong government.

"(T]he sovereignty of Congress, though limited to specific

objects, is plenary as to those objects." Gibbons, 22 U.S. (9

Wheat) at 197. When it came to the power over commerce

among the several States, Marshall relied primarily upon the

nature of representative government to determine those lim-

its:

The wisdom and discretion of Congress, their

identity with the people, and the influence

which their constituents possess at elections,

are, in this, as in many other instances, as that,

for example, of declaring war, the sole re-

straints on which they have relied, to secure

them from its abuse. They are the restraints

‘ Free market conservationists argue that a system of economic

incentives can accomplish the goal of protecting wildlife far better than

any system of regulatory control. Under the current system, property

owners are subject to severe loss whenever migratory birds may be at-

tracted to water on their land. The prudent property owner should there-

fore take steps to make sure his or property cannot benefit birds. But this

is madness! In a system of well-designed economic incentives, the pru-

dent property owner would look for the optimal fit between human use

and bird use , resulting in a greatly expanded range of habitats for mi-

gratory birds. Only Congress can authorize the tax credits or appropria-

tions that would be necessary to unleash the power of the free market,

however. Upholding the EPA's power in this case takes away Congress's

incentive to create such economic incentives.

17

on which the people must often rely solely, in

all representative governments.

Gibbons, 22 U.S (9 Wheat) at 197.

Many commentators have noted that our government

combines the best features of democracy (in Congress),

monarchy (in the Presidency), and aristocracy (in this Court).

Our Founders concentrated the executive power of the

United States in a single head because the Executive Branch

only carries out the will of the people, as that will has been

expressed by Congress. It is Congress, and only Congress,

that can exercise the legislative powers vested by the Con-

stitution. U.S. Const. Art. I, § 1. If the executive power of

the United States includes a power to rewrite the laws, how-

ever, the monarchical branch can oppose the will of the peo-

ple instead of carrying it out. Thus the executive might be

transformed from a monarchical servant of the people into a

legislative tyrant of the people.

Political accountability is one of our structural guarantees

of freedom. If Congress can protect the "waters of the

United States" and leave it up to the EPA to define those

"waters" under the broadest possible interpretation of the

Commerce Clause, then Congress could just as easily lay

claim to the "money of the United States" and leave it up the

IRS to decide what that is under the broadest possible inter-

pretation of the Sixteenth Amendment. And since that

Amendment allows Congress to "lay and collect taxes on in-

comes, from whatever source derived," that broadest possible

interpretation would allow the IRS to claim every penny any

American ever earned. We dare not leave the scope of con-

gressional power to be determined by the Executive Branch.

Marshall's concept of political checks on the plenary

commerce power took on new life in two recent decisions.

In Brown & Williamson, supra, five members of this Court

refused to defer to an Executive Branch rule that expanded

the term "drug" to include tobacco. And in Jones, supra,

every member of the Court agreed that the Justice Depart-

ment was wrong to construe the term "in or affecting inter-

state commerce" so broadly as to convict a man for throwing

a Molotov cocktail into his cousin's living room.

This last precedent, all by itself, should be sufficient to

determine the outcome of this case. This Court unanimously

overturned the conviction of Dewey Jones, even though the

Executive Branch construed a Commerce Clause statute so

broadly that almost every building in America "affected in-

terstate commerce." Now, the Executive Branch is trying to

convert almost any puddle in America into "navigable wa-

ters." Some people may value the liberty of a petty arsonist

more than the property of a consortium of Chicago suburbs.

Nevertheless, the constitutional principles of limited gov-

ernment, separation of powers, and individual rights are the

same, whether what is at stake in the case is 20 extra years in

jail or the right to develop a landfill. This Court did the right

thing when it ruled against the Department of Justice in favor

of a convicted arsonist like Dewey Jones. The right thing

now is to rule against the Army Corps of Engineers and set

23 municipalities free to convert an abandoned strip mine

into a landfill.

CONCLUSION

John Marshall believed in plain language and political

accountability. Those two principles are all that are needed

to determine the outcome of this case. There are a number of

ways that Congress can protect the habitat of migratory

19

birds, but all of them require elected legislators to justify

their actions to the voters. There is no such accountability

when unelected Executive Branch officials stretch the term

"navigable waters" to include the water-filled ditches on an

abandoned strip mine. The EPA, just like the FDA in Brown

& Williamson, supra, has twisted the plain language of stat-

utes to mean something altogether other than what Congress

originally intended. This is an unconstitutional exercise of

the legislative power of the United States, which this Court

should reject. We therefore urge this Court to overturn the

decision below.

Respectfully Submitted,

Herel gnaw

MICHAEL P. FARRIS*

SCOTT W. SOMERVILLE

Center for the Original Intent of

the Constitution, at

Patrick Henry College

P.O. Box 1776

Purcellville, VA 20134

(540) 338-1776

* Counsel of Record